and hence that the exception was meant to apply to all cases of contracts as to an interest in lands within the purview of the clause in section 4 of the Statute of Frauds. But the court's proposition that the amendment to section 1624 would thus be deprived of any real significance, since such contracts would be left exactly where they were before the amendment, is a weighty one; and in connection with the point that the whole doctrine of part performance is an anomaly, which ought to be held within narrow limits,24 it seems conclusive. Thus the case is significant of a reviving regard for the policy of the statute on the part of American courts.

I have said that taking cases out of the Statute of Frauds by part performance is an anomaly. This proposition is disputed with

(1869); Lozier v. Hill, 68 N. J. Eq. 300, 59 Atl. 234 (1904); Gooding v. Brown, 35 Hun, (N. Y.) 148 (1885); Henning v. Miller, 66 Hun (N. Y.) 588, 21 N. Y. Supp. 831 (1893); Ludwig v. Bungart, 48 App. Div. 613, 63 N. Y. Supp. 91 (1900); Banta v. Banta, 103 App. Div. 172, 93 N. Y. Supp. 393 (1905); Howard v. Brower, 37 Ohio St. 402 (1881); Kling v. Bordner, 65 Ohio St. 86, 61 N. E. 148 (1901); Hopple v. Hopple, 2 Ohio C. D. 59 (1888); Brown v. Golightly, 106 S. C. 519, 91 S. E. 869 (1917), aliter as to contract to leave personalty, Turnipseed v. Sirrine, 57 S. C. 559, 35 S. E. 757 (1899); Campbell v. Taul, 3 Yerg. (Tenn.) 548 (1832); Goodloe v. Goodloe, 116 Tenn. 252, 92 S. W. 767 (1905); Henderson v. Davis, 191 S. W. (Tex. Civ. App.) 358 (1917); Hale v. Hale, 90 Va. 728, 19 S. E. 739 (1894); Swash v. Sharpstein, 14 Wash. 426, 44 Pac. 862 (1896); In re Edwall's Estate, 75 Wash. 391, 134 Pac. 1091 (1913); Soper v. Sheldon's Estate, 120 Wis. 26, 97 N. W. 524 (1903); Laughnan v. Laughnan, 165 Wis. 348, 162 N. W. 169 (1917); Horton v. Stegmyer, 175 Fed. (C. C. A.) 756 (1910); Quirk v. Bank, 244 Fed. (C. C. A.) 682 (1917).

A few jurisdictions construe the words of the statute literally and hold to the contrary: Stahl v. Stevenson, 102 Kan. 447, 844, 171 Pac. 1164 (1918) (contract to leave property generally, even if whole estate is land); aliter a contract to devise specific land, Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147 (1913); Myles v. Myles, 6 Bush (Ky.), 237 (1869), but see Gernhert v. Straeffer, 172 Ky. 823, 189 S. W. 1141 (1916); Woods v. Dunn, 81 Ore. 457, 159 Pac. 1158 (1916) (semble); Quinn v. Quinn, 5 S. D. 328, 58 N. W. 808 (1894).

If this latter view were to be taken, it could be argued that the amendment to the California code merely sought to bring that jurisdiction into line with the prevailing view and the arguments suggested in the text could be made on that basis.

24 Lord Blackburn in Maddison v. Alderson, 8 App. Cas. 467, 489 (1883); Lord Redesdale in Lindsay v. Lynch, 2 Sch. & Lef. 1, 5 (1804); Kent, C., in Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131, 139 (1814), and Parkhurst v. Van Cortlandt, 1 Johns. Ch. (N. Y.) 273, 284-285 (1814); Walworth, C., in German v. Machin, 6 Paige (N. Y.), 288, 293 (1837); Zabriskie, C., in Eyre v. Eyre, 19 N. J. Eq. 102, 104 (1868); Field, J., in Arguello v. Edinger, 10 Cal. 150, 159 (1858); Woodward, J., in Moore v. Small, 19 Pa. St. 461, 466 (1852); Sterrett, J., in Jamison v. Dimock, 95 Pa. St. 52, 56 (1880); Brickell, C. J., in Heflin v. Milton, 69 Ala. 354, 356 (1881); Hemphill, C. J., in Garner v. Stubblefield, 5 Tex. 552, 557 (1851); 2 STORY, EQUITY JURISPRUDENCE, §§ 1051–1052; BROWNE, STATUTE OF FRAUDS, 5 ed., § 492.

much ability in a recent paper,25 on the basis of interpretation of the statute in the light of contemporary history, showing, as it is argued, that it was not intended to apply in equity at all. But the argument proves too much. If the author's thesis is sound, instead of taking cases out of the Statute where there was fraud or possession had been taken or there was part performance, courts of equity should have spoken thus: "Since with our modes of proof we can obviate the mischiefs of seventeenth-century jury trial, for which alone the Statute was devised, we will specifically enforce all contracts, written or oral, according to the general principles of our jurisdiction." What the courts actually did was to assume the Statute applicable in equity and then take particular cases out of its purview by reason of fraud or because the bargain was "executed" and this from a time almost contemporary with its enactment.26 The proposition had also been disputed by Lord Selborne on the ground that in these cases the court of equity does not enforce the contract but rather the "equities" of the plaintiff arising from fraud or part performance.27 This ex post facto rationalization of what had gone on in equity for historical reasons, seems to be open to a conclusive objection. The courts have not enforced and do not enforce the equitable claims of the plaintiff arising from fraud or part performance as such, but rather the contract itself, exactly as if it were a legally enforceable contract for which the legal remedy was inadequate. The "equities" of one who has been put in possession or of one who has partly performed, call for making him whole for what he is out upon the faith of the contract, so far as a court of equity may do so. Hence they amply justify the view of certain southern courts which carry equitable relief so far as to give the purchaser an accounting and complete restitution, but no further.28 Lord Selborne's theory, however, was not pro

25 Costigan, "Has There Been Judicial Legislation in the Interpretation . . . of the Statute of Frauds," Wigmore Celebration Essays, 473, 14 ILL. Law Rev. 1.

26 The leading cases for the two types of taking out of the statute are Mullet v. Halfpenny, Prec. Ch. 404 (1699) and Butcher v. Stapely, 1 Vern. 363 (1685).

27 Maddison v. Alderson, 8 App. Cas. 467, 475 (1883). This ingenious theory has been given much currency in recent American decisions by Professor Pomeroy, 2 EQUITABLE REMEDIES, 2 ed., § 2239.

28 Grant v. Craigmiles, 1 Bibb, 203 (1808) and subsequent cases in Kentucky; Beaman v. Buck, 9 Sm. & M. 207 (1848) and subsequent cases in Mississippi; Albea . Griffin, 22 N. C. 9 (1838), and subsequent cases in that state; Patton v. McClure, Mart. & Yerg. 333 (1828), and subsequent cases in Tennessee.

pounded to explain cases confining relief to restitution in equity but to meet those where the court of equity "takes the case out of the statute" and enforces the contract as such. It is important to insist that the taking of cases out of the statute is a historical anomaly, only to be understood by reference to seventeenth-century and eighteenth-century legal institutions and modes of thought in equity and that, like all historical anomalies of the sort, it defies logically satisfactory analytical treatment.

What is the actual situation? We say that for the purposes of courts of equity, cases are taken out of the purview of the statute in either of two ways: by fraud or by part performance. Recently there has been a tendency to run the two together, largely under the influence of Pomeroy's doctrine of "equitable fraud." 29 But they had an independent origin and have developed along independent lines. Hence they call first for independent consideration.

All the decisions on "fraud" as a ground for taking cases out of the statute refer directly or indirectly to Mullet v. Halfpenny 30 There the contract was in writing, but the defendant fraudulently got possession of it so that plaintiff could not produce it. To-day, plaintiff would give him notice to produce and prove the contents of the writing by secondary evidence. In those days it could be said that as defendant himself had fraudulently created the obstacle to making the proof required by the statute, it was inequitable that he be allowed to take advantage thereof and hence that he should not be allowed to assert the statute. In another old case 31 a marriage took place on the husband's promising to settle certain property upon the wife according to his prior agreement. One may well feel that he did not intend to keep this promise when it was made. But perhaps such a state of facts was not actually proved, and the line between statements of fact as to one's present state of mind and promises as to one's future conduct was not well understood in 1720. At any rate the court distinguished cases of "reliance on the honor, word or promise of the defendant" from "cases of fraud," and put as an instance of fraud, "if one agreement in writing should be proposed and drawn and another fraudulently

29

4 POMEROY, EQUITY JURISPRUDENCE, 4 ed., § 1409 n.

30 Prec. Ch. 404 (1699). Halfpenny v. Ballet, 2 Vern. 373 (1699), is evidently the

same case.

31 Montacute v. Maxwell, I P. Wms. 618 (1720).

and secretly brought in and executed in lieu of the former." Evidently the court had in mind cases where a defendant is held in equity to make good his representations after plaintiff has acted on them. Besides these cases of fraudulent creation of the bar and fraudulent representations acted on, the books speak of another case, namely, "a marriage brought about by fraud of the promisor." Statements to this effect go back to Cookes v. Mascall 32 and Dundas v. Dutens.33 In the former, without fraud of any sort, a marriage settlement reduced to writing but not signed by either party, was decreed to be performed.34 In the latter, Lord Thurlow said obiter: "If the husband made an agreement that he would settle and then in fraud of that agreement got married, would not he be bound by it?" Later English decisions make it very doubtful whether the inference drawn from these old cases can stand. Of the American cases, Peek v. Peek 36 and Allen v. Moore 37 seem to hold that making a promise not intending to keep it and thus procuring a marriage, will take the case out of the statute. But in the latter there was no more than a breach of a promise as to what should be done after marriage. It is hard to find any actual fraud in the case as reported, and the authorities are properly against the proposition that non-performance of a promise relied on by the plaintiff is to be held "fraud” in this connection.38 Peek v. Peek relies on Green v. Green,39 a case of a radically differ

34 This has much of the flavor of the strong-arm decisions of seventeenth-century chancellors in matters of family settlement. See the remarks of Lord Henley in Wycherley v. Wycherley, 2 Eden, 175, 177–178 (1763).

35 In Caton v. Caton, 1 Ch. App. 137 (1865), intended husband and wife agreed upon a settlement before marriage. It was prepared accordingly, but they then agreed there should be no settlement, the husband promising her to make a will giving her all his property. The marriage took place and the will was made, but on the husband's death it was found he had made a later and different will. The court held the case was not taken out of the statute. In Wood v. Midgley, 5 De G., M. & G. 41, 45 (1854), Turner, L. J., says: "Is there then a case alleged by the bill of this nature, that the Defendant did by his fraudulent act prevent the agreement from being reduced to writing." 36 77 Cal. 106, 19 Pac. 227 (1888).

37 30 Colo. 307, 70 Pac. 682 (1902).

38 But see the dicta in Wooldridge v. Scott, 69 Mo. 669, 673 (1879). These and other statements to the same effect (compare I POMEROY, EQUITABLE REMEDIES, 2 ed., § 2253, n. 63) are founded on Halfpenny v. Ballet, 2 Vern. 373 (1699), which is a poor report of Mullet v. Halfpenny.

39 34 Kan. 740, 10 Pac. 156 (1886).

ent type.40 In the latter there is not a contract at all. In order to induce the marriage the intended husband made representations as to the property he then had, in which the wife would acquire certain homestead or other statutory rights upon marriage. Prior to the marriage he fraudulently conveyed the property to a grantee with notice. The wife having married him on the faith of his ownership of the property he and those who fraudulently held for him were compelled to make the representation good. Where there is no fraudulent creation of the statutory obstacle, no fraudulent representation that the statute has been complied with, and no case of representations, as distinguished from contract, which equity requires to be made good, there is excellent authority for applying the statute. But the first two cases go on a sound general doctrine of equity 42 and the third is not within the letter nor the spirit of the statute.

There are two main types of case in which part performance is held to remove the bar of the statute. In one possession has been taken under the contract and that alone or something further done in connection therewith is taken to suffice. In the other possession is not possible and the part performance is had in some other way. Logically there would seem little ground for a distinction of this sort. But the cases here also developed along two lines and attempts in the last generation to bring the two together upon some common theory have succeeded more in appearance than in reality. Let us look briefly at each.

Before a decade had passed after its enactment, the Court of Chancery began to take cases out of the operation of the statute where purchaser had been put in possession under the contract.43 Sugden long ago called attention to some old cases which indicate that this was the result of ideas as to livery of seisin.44 Putting the purchaser in possession was taken to be the substance of a common-law conveyance. The rule thus derived became established in

40 of the same sort are Petty v. Petty, 4 B. Mon. (Ky.) 215 (1843); Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797 (1898).

"Hackney v. Hackney, 8 Humph. (Tenn.) 452 (1847); I STORY, EQUITY JURISPRUDENCE, 768.

2 Perhaps this is what really lies at the basis of the familiar saying that the doctrine "rests on estoppel." 3 POMEROY, EQUITY JURISPRUDENCE, 4 ed., § 1293.

Butcher v. Stapely, 1 Vern. 363 (1685).

VENDOR AND PURCHASER, 14 ed., 152 n. p.